| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW & APPEALS LIST
S CI 2013 6020
| TANIA ISBESTER | Plaintiff |
| v | |
| KNOX CITY COUNCIL | Defendant |
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JUDGE: | EMERTON J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20-21, 24, 26-27 February and 7 March 2014 | |
DATE OF JUDGMENT: | 17 June 2014 | |
CASE MAY BE CITED AS: | Isbester v Knox City Council | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 286 | |
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ADMINISTRATIVE LAW – Judicial review – Decision of the Council to destroy a dog following a series of attacks – Whether the decision affected by apprehended bias and bad faith - Whether the Council denied the plaintiff procedural fairness – Whether the reasons for decision are inadequate– Whether the Council’s decision to destroy the dog was manifestly unreasonable – Proceeding dismissed - Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 - Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 - Gubbins v Wyndham City Council (2004) 9 VR 620 - McGovern v Ku-Ring-Gai Council (2008) 72 NSWLR 504 - East Melbourne Group Inc v Minister for Planning (2008) 23 VR 605 - Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 – ss 29(4) and 84P of the Domestic Animals Act1994 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Kendall QC Ms J Taylor | Phoenix Legal Solutions |
| For the Defendant | Mr R Knowles | Maddocks |
HER HONOUR:
Introduction
The plaintiff has brought a proceeding under O56 of the Supreme Court (General Civil Procedure) Rules 2005 seeking to have set aside as unlawful the decision made by the Knox City Council on 15 October 2013 to destroy her dog, Izzy.[1]
[1]She also seeks a permanent injunction restraining the Council from exercising any powers in respect of Izzy by reason of the plaintiff’s guilty plea entered on 12 September 2013 in the Magistrates’ Court of Victoria.
Izzy is a four year old Staffordshire Terrier. She was a family pet and one of three Staffordshire Terrier dogs - Izzy, Bub and Jock - previously owned by the plaintiff. In August 2012 and in May and June 2013, Izzy, Bub and Jock were involved (in various combinations) in attacks on other dogs, having on each occasion escaped from the plaintiff’s backyard and wandered unattended into the surrounding streets. Jock was the youngest of the three dogs, and the only male. Jock was destroyed on 9 June 2013 immediately following two savage attacks on small dogs that also resulted in serious injuries to their owners. The Council seized Izzy and Bub, and Izzy has remained impounded ever since.
For the reasons that follow, none of the grounds for review is made out and the proceeding must be dismissed.
Background
Statutory framework
The legislation pursuant to which the Council’s decision to destroy Izzy was made is the Domestic Animals Act1994 (Vic) (the ‘Act’).
Section 84P of the Act relevantly provides:
The Council may destroy a dog which has been seized under this Part…
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- Case
- [2014] VSC 286
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the decision was influenced by apprehended bias and bad faith, whether procedural fairness was denied, and if the reasons provided were adequate. The court also had to assess whether the decision to destroy the dog was manifestly unreasonable. The court considered the principles established in Ebner v Official Trustee in Bankruptcy, Minister for Immigration and Multicultural Affairs v Jia Legeng, Gubbins v Wyndham City Council, McGovern v Ku-Ring-Gai Council, East Melbourne Group Inc v Minister for Planning, and Minister for Immigration and Citizenship v Li, as well as sections 29(4) and 84P of the Domestic Animals Act 1994 (Vic).
The court found that the Council’s decision was not affected by apprehended bias or bad faith, and that procedural fairness had not been denied. The court also held that the reasons provided for the decision were adequate and that the decision to destroy the dog was not manifestly unreasonable. The court found that the Council had properly exercised its discretion under the Domestic Animals Act 1994 (Vic), and the proceeding was dismissed.
The court dismissed the proceeding and made no orders for costs.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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